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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Sunday, February 19, 2006

NSA legal arguments

It is somewhat common for new people to show up at this blog armed with the Administration's NSA legal defenses and then start demanding that these arguments be addressed. As a result, it is necessary for me to point out periodically that, along with many other people, I spent considerable time in the weeks immediately after the NSA scandal first arose hashing out all of these legal arguments.

I didn't just wake up one day and leap to the conclusion that the Administration broke the law deliberately and that there are no reasonable arguments to defend that law-breaking (as many Bush followers leaped to the conclusion that he did nothing wrong and then began their hunt to find rationale or advocates to support this conclusion). I arrived at the conclusion that Bush clearly broke the law only by spending enormous amounts of time researching these issues and reading and responding to the defenses from the Administration's apologists.

I say all of this because now and then the accusation arises that I write from the perspective that Bush broke the law with his warrantless eavesdropping without setting forth the rationale for that view. I can't write a new legal brief every time someone new shows up who decides they want to recite the Administration's legal defenses. At some point, I have addressed each of these legal arguments (usually multiple times), as have many other people. If someone really thinks there are arguments I have not addressed, I'm happy to debate them, but I'd request first that you review the following posts I've written (or posts written by others to which I've cited) on each legal issue relating to the NSA scandal:

The statutory arguments are addressed here, here, and here.

The AUMF argument are addressed here, here, and here.

The inherent authority/Article II argument is addressed here, here, here, here, here and here.

The various FISA-deficiency-based defenses are addressed here, here, here, here, here, here, and here.

Replies to and critiques of the Administration's defenses are here, here, here, here, here, and here.

The 4th Amendment argument is addressed here and here.

The "harm to national security" claim is addressed here, here, here, and here.

In addition, see: Eriposte at The Left Coaster, who has compiled many of the NSA arguments made against the Administration's position in the blogosphere (including many made on this blog) here, as well as the legal brief of 14 professors and former government lawyers as to why the Administration's legal arguments are frivolous, here.

Ultimately, though, the entire legal debate in the NSA scandal comes down to these few, very clear and straightforward facts: Congress passed a law in 1978 making it a criminal offense to eavesdrop on Americans without judicial oversight. Nobody of any significance ever claimed that that law was unconstitutional. The Administration not only never claimed it was unconstitutional, but Bush expressly asked for changes to the law in the aftermath of 9/11, thereafter praised the law, and misled Congress and the American people into believing that they were complying with the law. In reality, the Administration was secretly breaking the law, and then pleaded with The New York Times not to reveal this. Once caught, the Administration claimed it has the right to break the law and will continue to do so.

That's where we are in this country -- with an Administration expressly claiming it has the power to engage in actions which the American people, through their Congress, expressly made it a criminal offense to engage in.

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